As is well known, Law 2/2023, of February 20, regulating the protection of persons who report regulatory infringements and the fight against corruption, obliges natural or legal persons in the private sector with fifty or more employees to have an internal information system in the terms provided for in said law -art. 10.1.a)-.
Likewise, Law 2/2023 -art. 63.1.g)- typifies as a very serious infringement the (fraudulent) non-compliance “of the obligation to have an internal information system in the terms required by this law”. And Law 2/2023 -art. 63.2. c)- that, in the case of very serious infringements, in addition to the corresponding fine (depending on whether the person responsible for the infringement is a natural or legal person, by the way, a differentiating criterion that by itself does not seem very reasonable), the corresponding authority (either the state or, as the case may be, the autonomous authority), “may” agree: “The prohibition to contract with the public sector for a maximum period of three years, in accordance with the provisions of Law 9/2017, of November 8, on Public Sector Contracts, transposing into Spanish law the Directives of the European Parliament and of the Council 2014/23/EU and 2014/24/EU, of February 26, 2014.”
Note that the precept does not impose this accessory sanction, since no other is its nature, but rather – as happens in other laws – it leaves to the discretion of the sanctioning body the application of the prohibition to contract. Likewise, the express reference of the precept to the LCSP determines, as it could not be otherwise, that such sanction does not take effect until the sanctioning resolution is final -art. 71.1.b)-. In fact, subsequent to Law 2/2023, Law 11/2023, of May 8, amended Law 9/2017, of November 8, on Public Sector Contracts, expressly including the very serious infringements provided for in Law 2/2023, of February 20.
Therefore, in order to make the prohibition to contract effective, it is necessary that the competent Administration in each case regarding the protection of persons reporting infringements, after the corresponding sanctioning procedure, agrees on the imposition of a very serious sanction (a serious infringement is not enough) and, additionally, agrees on the application of the prohibition to contract and, finally, that such resolution is final.
All this means that, in addition to the time required for the processing of the sanctioning procedure and the acquisition of finality of the sanction, it cannot be ruled out that, despite the fact that the objective breach of the legal duty is established, the procedure does not result in a sanction due to the lack of other determining factors (especially culpability, since the type of sanction requires commission by fraud). And to all this must be added the factor of discretion in the imposition of the accessory sanction itself (practically uncontrollable in the event that it is not imposed).
This way of proceeding by the legislator may be reasonable with respect to other very serious infringements of Law 2/2023 (such as the adoption of reprisals or the violation of the guarantees of confidentiality and anonymity of the informant), but in the specific case of the breach of a general and easily verifiable obligation such as the obligation to have an internal information system, it is easy to infer that due to all the conditioning factors indicated, the prohibition to contract, as it is configured, will be scarcely effective in guaranteeing compliance with said legal duty.
However, the state legislator had a much easier and well-known solution, since it is the circumstance that the LCSP itself -art. 71.1. d)- directly imposes, ope legis, the prohibition to contract “in the case of companies with 50 or more workers, not complying with the requirement that at least 2 percent of their employees are workers with disabilities, in accordance with Article 42 of Royal Legislative Decree 1/2013, of November 29, approving the revised text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion, under the conditions to be determined by regulation; or in the case of companies with 50 or more workers, not complying with the obligation to have an equality plan in accordance with the provisions of Article 45 of Organic Law 3/2007, of March 22, for the equality of women and men (until Law 31/2022, of December 23, 2007, the obligation was for companies with more than 250 workers).
Thus, taking advantage of the fact that the three legal obligations refer to companies with 50 or more workers, I understand that the prohibition to contract that we are dealing with in letter d) of art. 71.1 LCSP could well have been included, together with the two prohibitions indicated above, which would have provided a powerful weapon to enforce compliance with the obligation to have an internal information system. It goes without saying that this measure can be adopted at any time by the state legislator.
However, the aforementioned obligation has a general scope, depending exclusively on the size of the company or entity in terms of the number of employees. However, in the specific case of private companies and entities that contract with the public sector, there is an additional qualification that has not been taken into account by the legislator, since such entities collaborate in the provision of goods and services to the public sector, are recipients of public funds and, on occasions, managers of public services. I understand that this specific factor justifies a special treatment, even though the companies and entities in question are not generally obliged to have an internal information system.
Let us recall that Law 2/2023 -art. 10.2- provides that legal entities (?) of the private sector that are not bound by the obligation imposed by the law “may establish their own Internal Information System, which must comply, in any case, with the requirements set forth in this law”.
Well, to the same extent that public sector entities can use the instruments of public procurement (evaluation criteria in the award and special conditions of execution) to promote the hiring of people with disabilities or the implementation of equality plans beyond what is mandated by law, I understand that it is also perfectly possible that the same can be done to extend the internal information systems in companies that contract with the public administration.
Perhaps this type of measure would not be appropriate for any public contract of small size or involving a merely episodic relationship with the public sector. But in the case of contracts of a certain amount and involving a prolonged relationship over time, perhaps the inclusion of clauses of the type indicated above should be considered. And, above all, in the case of service contracts and concessions of works or services that involve direct benefits for the public, I believe that this type of clause should be generalized. Let us think, for example, of contracts or agreements with homes for the elderly and dependent persons. The staff working in these centers (and also the volunteers who collaborate with them) are in the best position to alert of possible irregularities (sometimes very serious), and it makes no sense that this depends exclusively on the number of employees of the company or entity.